A guaranteed FAIL

WILLIAMSBURG–Virginia Beach lawyer Steve Emmert knows a thing or two about taking a case up on appeal.

He’s one of the lawyers who has built appellate law into a recognized and well-respected area of practice in Virginia.

He’s served as chair of the appellate practice sections of both the Virginia State Bar and the Virginia Bar Association.

Emmert was asked to speak to the Virginia Association of Defense Attorneys’ annual meeting in Williamsburg Oct. 28. He told me before his talk that he had to dig deep into the past to the time he regularly tried cases; he knew his crowd was more interested in the courtroom than the appellate chamber.

For a guy who is a member of the Virginia Trial Lawyers Association’s board of governors, his talk to the VADA was a trip to or from the dark side, depending upon your perspective.

Instead of droning on through 45 minutes of “how to preserve this point,” Emmert did a reverse flip and presented the “Top Ten Ways to Sabotage Your Appeal.” In other words, be sure to do these things if you want to guarantee your appeal is a failure. As for his format, Emmert joked that “people told me I looked like David Letterman before I grew a beard.”

9. Rely on the “plain error” doctrine. This catch-all rationale lets an appellate panel fix a problem that is just plain wrong. It also allows the appellate lawyer you hire to “ride to the rescue,” he said. The only problem here is that “plain error” is defined narrowly in the Rules of Court.

8. Accept the judge’s ruling and just move along. You might risk the judge’s wrath, but there are times when you need to insist on a line of questioning. Also, there are times to insist on proffering evidence, even in the face of an adverse ruling, Emmert said. If the proffer isn’t part of your record, the appellate judges can’t see what you were trying to do and whether you were right.

7. Get the trial over with, already! As jury instructions are being read, don’t follow along to see if there is a mistake.

6. File a motion in limine, then relax. Some questions need to be taken care before you start swearing in witnesses, and pre-trial motions will help you, the other side and the judge to sort things out. If you don’t push these and wait until all those issues come up in trial while the jury is sitting in the box, you don’t have to worry about victory.

5. Let sleeping judges lie. Judges take issues under advisement during a trial, then forget about them. If you don’t bring them back up or press for a ruling, the issues stay forgotten and lost as potential points of appeal. There might be a time to go for the nuclear option: “Your honor, I object to your failure to rule on my objection.” The judge may not like it, but the Supreme Court of Virginia has said “it’s what you have to do,” Emmert noted.

4. Test your memory. You can save space in your trial notebook if you just plan to remember everything. If you don’t bother with writing down a list of unresolved motions or objections, or you don’t list exhibits that need to be included, you won’t have to deal with them later, he said.

3. Renew your motion to strike. This once-clear practice has turned into a tricky appellate trap, thanks to a pair of cases from last year – Murillo-Rodriguez v. Commonwealth, 279 Va. 74 (VLW 010-6-008), and United Leasing v. The Lehner Family Business Trust, 279 Va. 570 (VLW 010-6-031). The bottom line – if you don’t restate your reasons behind the motion to strike when you renew the motion, you’re cooked. A mere renewal isn’t enough, Emmert said.

2. Go placidly off the record. If you approach the bench at the judge’s invitation or go back to chambers to resolve issues out of the presence of the court reporter, you have forfeited them as appeal points because you “make sure nothing happened.” One alternative – once you’re back on the record, you make a statement reiterating the pertinent issue, including what was ruled and even why.

1. Be relentlessly polite. You’re taught as a child never to interrupt anyone, but impeccable manners in a trial might insure your loss. You need to be ready to jump in and object, even if the judge “takes the wheel” and starts asking questions of a witness.

“Your honor, I object to what you’re doing” is a statement that might require some guts, but ultimately, your client – either the plaintiff or the defendant – didn’t hire you to be milquetoast.